.Sheriff’s oversight ordinance fundamentally flawed, says watchdog group

After years of discussion and debate, Marin County has finally unveiled a proposed ordinance that could soon lead to civilian oversight of the sheriff’s office. But a watchdog group is already sounding the alarm that the ordinance is “fundamentally flawed.”

Assembly Bill 1185, state legislation enacted in January 2021, allows counties to establish an oversight commission, an inspector general position or both to assist in overseeing the sheriff’s office. Another provision in the bill permits counties to grant subpoena power to the commission.

Marin’s ordinance does all three. A nine-member independent civilian oversight commission will work with an inspector general employed by the county. The almighty subpoena power provides the commission with a tool to conduct meaningful reviews into complaints about officers, alleged misconduct, use of force and other incidents.

This model confers substantial authority to civilians, and it’s the type of oversight that community activists and civil right groups have been demanding. Elected sheriffs, they say, have often operated with little supervision and transparency.

Transparency—pulling back the curtain on the sheriff’s activities—is one of the ordinance’s stated goals. The others are for the oversight commission to build trust between the public and the sheriff’s office and provide accountability.

It appears the ordinance equips the commission with the necessary teeth to meet these objectives, as opposed to police advisory committees without investigative or subpoena powers, such as those in San Rafael and Novato.

Many stakeholders worked together to bring this ordinance to the table. County Supervisors Mary Sackett and Katie Rice are on the board’s oversight subcommittee. Additionally, the board appointed a working group with 15 community members to develop the oversight framework. The county hired the National Association for Civilian Oversight of Law Enforcement (NACOLE), a nonprofit, to guide the working group in best practices. The sheriff’s office, law enforcement labor organizations and county staff also weighed in on the oversight ordinance.

Still, there are three major problems with the ordinance that will seriously undermine oversight, according to Mill Valley Force for Racial Equity & Empowerment (MVFREE), a local group working to eliminate bias in policing. Last week, MVFREE sent a comprehensive letter to the Marin County Board of Supervisors identifying their concerns and providing revisions to resolve them.

“We want the Board of Supervisors to seriously consider that these three issues will prevent the oversight commission from doing their jobs,” said Tammy Edmonson, a retired attorney and MVFREE member.

First, the ordinance does not provide the commission with access to all the necessary information from the sheriff’s office, MVFREE claims. Instead, the ordinance specifies that commission members may review specific types of “completed” investigations.

While this language limits the information that the commission may see, MVFREE believes it may also preclude the commission from receiving any information at all. If the sheriff’s office doesn’t complete an investigation, the commission will never even know of its existence.

The second issue is secrecy in the oversight process, even though transparency is a stated goal of the ordinance, MVFREE said. The group’s letter notes that the word “confidentiality” appears in the ordinance numerous times.

“The way they drafted the ordinance, they focused on protections for the sheriff’s office, rather than the overriding obligation of transparency,” Edmonson said.

Lastly, MVFREE expressed concern that the ordinance restricts the commission’s investigative power. The ordinance allows the commission to call for an independent investigator to investigate the sheriff’s office; however, the process presents four hurdles that will prevent the commission from ever doing so, states MVFREE’s letter.

One obstacle, according to MVFREE, is that the sheriff’s office must complete an internal investigation before the oversight commission may seek an independent investigation.

But the biggest impediment to the commission launching an investigation is time, contends MVFREE. Under the ordinance, the commission can’t order an independent investigation if it “would violate the time limits set forth in the Police Officers’ Bill of Rights.”

The ordinance cites the California’s Public Safety Officers Procedural Bill of Rights Act (POBR), legislation enacted to protect the rights of sworn law enforcement officers. POBR contains only one time limit, found in its policy that prevents punitive action from being taken against an officer unless the investigation is completed within one year of the discovery of alleged misconduct.

MVFREE’s interpretation of this portion of the ordinance is that the sheriff’s internal investigation and the oversight commission’s independent investigation must be completed within one year of learning of an incident.

While MVFREE maintains this time limit will stymie the commission’s ability to order an investigation, Marin County Sheriff Jamie Scardina disagrees with the group’s assessment.

“In my 26 years, we’ve never come close to taking one year,” Scardina said. “It’s usually just several months.”

That certainly raises the question of why the time limit is in the ordinance at all. The oversight commission has no power to take punitive action against officers. Rather, its purpose is to shine a light on the activities of the sheriff’s office. Does an independent investigation that will never result in an officer’s punishment constitute a violation of POBR?

Brian Washington, Marin County’s counsel, declined to answer questions about the time limit and its impact on the oversight commission, stating that the county must still participate in a “meet and confer” process with law enforcement labor organizations. That process could result in revisions to the ordinance.

“I think it’s a good working ordinance,” Scardina said. “Do I think it’s perfect? No. But it’s a step in the right direction for the community we serve and our organization.”

MVFREE wasn’t surprised that the sheriff seems amenable to the ordinance. And Stephen Bingham, a civil rights activist and member of the working group that helped draft the ordinance, says the group made a concerted effort to get along with the sheriff and his representatives.

“We had an agreement in the working group that we wanted a process that wasn’t confrontational with the sheriff’s office,” Bingham said. “Camme [a NACOLE employee] said it just wasn’t helpful to be at loggerheads with the sheriff’s office because they can stall the process and make it not work.”

Sackett approves of the working group’s approach and believes that everyone developed an understanding of the other side during the process. Yet she appreciates MVFREE, acknowledging the need for watchdogs.

Meanwhile, with no fanfare, the county posted a link to the proposed ordinance on its website almost two weeks ago. Once the labor unions sign off, the Marin County Board of Supervisors will consider public comments and vote on the ordinance, hopefully in late spring, Sackett said.

Before that time comes, MVFREE wants the board and public to consider the issues it has raised and the recommendations for revisions to the ordinance.

“Everyone wants to give the sheriff the benefit of the doubt,” Edmonson said. “Fine, but the civilian oversight is designed for the worst scenario, and there has been overreach by the sheriff’s office in the past. Our main concern is that the civilian oversight process be given a fighting chance to be effective, to be informed, to use the power of independent investigation.”